A Matter of Necessity: The Case for Mandating
Health Insurance for Contraception

Laura A. Cappiello

JD Candidate, June 2002

Food and Drug Law/Third Year Paper

April 11, 2002

Abstract

This paper examines the recent judicial,
administrative, and federal and state legislative efforts to
mandate contraceptive coverage. The paper analyzes the reasons why
historically contraception has been excluded from health insurance
plans and then concludes that to end gender discrimination,
increase women’s power in the workforce, reduce unintended
pregnancies and encourage pharmaceutical research and development,
Congress should pass the Equity in Prescription and Contraceptive
Coverage Act.

I. Introduction

“We allow our insurance companies to be
biased against women. If men were the ones who got pregnant, you
know it would be different.”[1]

“Instituting insurance coverage for
contraception that is adequate and fair, even and equal, is a
minimum requirement for ensuring reproductive health care for
American women and is a sensible private-sector as well as
public-sector policy goal.”[2]

On September 10, 2001 Congress’s Health,
Education, Labor and Pensions (HELP) Committee held a hearing on
S.104, the Equity in Prescription and Contraceptive Coverage Act of
2001 (EPICC).[3] If enacted, EPICC would require that health plans or
issuers providing health insurance coverage may not “exclude
or restrict benefits for prescription contraceptive drugs or
devices approved by the Food and Drug Administration
[FDA].”[4] In other words, EPICC would mandate by federal law
that all private health insurers and employers that offer
prescription drug coverage in their plans, include coverage for
prescription contraceptives, such as oral contraceptive pills,
Depo-Provera, Norplant, intrauterine devices (IUDs), diaphragms and
cervical caps. This introduction of the EPICC legislation was quite
timely, in that it followed a recent Equal Employment Opportunity
Commission (EEOC) administrative decision, which ruled that the
exclusion of prescription contraceptives from otherwise
comprehensive insurance plans was a violation of Title VII of the
1964 Civil Rights Act’s antidiscrimination laws[5] and a ruling by a Washington State district court
that an employer’s exclusion of prescription contraceptives
did indeed violate Title VII.[6] In addition, EPICC was introduced in the U.S.
Congress as many states had their own legislation pending, or had
recently passed legislation that would mandate insurance coverage
of contraceptives.[7] Unfortunately for American women, EPICC’s
hearing took place the day before the worst national tragedy in
decades. On September 11, 2001, the nation’s focus shifted
immediately and dramatically from this and other important issues
of domestic policy, to the international conflict posed by
terrorist organizations across the globe. Instead of debating
family planning issues, Congress was quickly forced to pass
legislation aiding the airlines and the victims of the World Trade
Center and Pentagon attacks and work with the President to declare
a war on terrorism. The partisanship that characterized the
107th Congress until September 11 subsided in a show of
national unity and strength. Both the Congressional and Executive
domestic agendas were shelved, put on hold until the immediate
national emergency was abated. Thus, EPICC went no further than the
September 10 HELP hearing. Although its introduction was timely,
given that the issue of contraceptive coverage had recently arisen
in the judicial, administrative and state legislative realms, the
timing of the hearing was most unfortunate.

This paper will examine in some detail each of the
judicial, administrative and legislative efforts to mandate
contraceptive coverage and then argue that although the EEOC
opinion, Erickson ruling, and state legislative enactments are
important steps in the direction of treating contraception and
thus, women, equally in the context of insurance coverage and
employment, federal legislation in the form of EPICC is necessary.
The paper will question why so many insurance providers choose not
to cover prescription contraceptives and what the economic, social
and moral implications of this lack of coverage are. Finally, the
paper will establish that access to affordable contraception is
essential for four main reasons: 1 - to save insurance companies,
employers, and the public the exorbitant economic and social costs
of unintended pregnancies; 2 - to increase women’s equality
and power in society and the workforce by allowing them to control
the number and timing of their pregnancies; 3 - to encourage
pharmaceutical companies to research and develop new, more
effective contraceptive technology by insuring there is a
predictable market for new contraceptive products; and 4 - to end
the historic gender discrimination present in many prescription
drug plans.

Currently, there are sixty million women in the
United States in their childbearing years – between the ages
of fifteen and forty-four.[8] Contraception is an essential part of their basic
health care. The federal government can no longer leave it up to
individual employers and insurers to decide whether to cover
contraceptives because those entities have failed women by
excluding contraception from many insurance plans. Congress should
act now to pass EPICC and send a message that contraception is a
basic health need that insurance companies and employers cannot opt
out of providing.

II. Legal Setting

The Equal Employment Opportunity Commission

One of the first indications that the tide was
turning toward requiring health insurance coverage for
contraception was the December 14, 2000 decision of the Equal
Employment Opportunity Commission (EEOC), ruling that two employers
who failed to offer insurance coverage for the cost of prescription
contraceptive drugs and devices had violated Title VII of the Civil
Rights Act of 1964 (Title VII),[9] as amended by the Pregnancy Discrimination Act of
1978 (PDA).[10] These employers were forced to reimburse employees
for the costs of their prescription contraceptives for the
applicable back pay period.[11] Although the agency’s decision was not
binding on courts and only applied to the two women who filed
charges with the EEOC against their employers, it did provide
guidance for both Congress (in its EPICC hearings) and the Erickson
court as to how Title VII should apply in this context.

The EEOC was careful to note that the reasons
why a woman utilized contraceptives is irrelevant to the
Title VII question. In this sense, whether a prescription such as
an oral contraceptive is used to prevent pregnancy or to reduce
menstrual cramps cannot factor into the decision to cover
contraceptives. Because prescription contraceptives are available
and used only by women, excluding them from an otherwise
comprehensive prescription drug benefit plan is facially
discriminatory even though the exclusion of prescription
contraceptives may not explicitly distinguish between men and
women. “Because one hundred percent of the people affected by
[employer’s] policy are members of the same protected group
– here, women – [employer’s] policy need not
specifically refer to that group in order to be facially
discriminatory.”[12] Resting the Title VII violation on the fact that
prescription contraceptives are used only by women raises an
interesting question as to whether employers and insurance
companies could exclude all contraceptive coverage should a viable
male prescription contraceptive be developed in the
future.[13]

Women’s health and advocacy groups such as
Planned Parenthood and the National Women’s Law Center (NWLC)
were particularly pleased with the EEOC decision, and after its
release proclaimed that until Congress passed legislation requiring
employers to offer prescription contraceptive coverage, they would
continue to file lawsuits on behalf of women that had been
discriminated against in this manner.[14] At the time, Jennifer Erickson’s class
action complaint was pending in a Washington federal court, and her
class was represented in part by attorneys from Planned Parenthood
and the National Women’s Law Center.[15]

Erickson v. Bartell

On June 12, 2001 the U.S. District Court for the
Western District of Washington handed down a landmark decision in a
case of first impression, holding that the “selective
exclusion of prescription contraceptives from defendant’s
[Bartell Drugs] generally comprehensive prescription plan
constitutes discrimination on the basis of sex.”[16] The Court found that Bartell’s exclusion of
prescription contraception was inconsistent with the requirements
of federal law under Title VII,[17] and the Pregnancy Discrimination Act.[18] Under Title VII, it is unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex or
national origin.”[19] Furthermore, according to Judge Lasnik, “it
is undisputed that fringe benefits, such as the prescription
benefit plan at issue here, are part of the employees’
‘compensation, terms, conditions, or privileges of
employment’.”[20] For Judge Lasnik, the resolution of this case was
relatively straightforward. Defendant Bartell Drugs was an employer
subject to Title VII (employers with 15 or more employees are
subject to federal antidiscrimination legislation)[21] offering its employees a self-insured benefit plan
that covered all prescription drugs, but specifically excluded from
coverage “a handful of products, including contraceptive
devices,”[22] which were available only to women. This amounted
to impermissible Title VII discrimination. Despite the fact that
the resolution is both legally and logically correct, it was the
first ruling of its kind, because it was the first lawsuit of its
kind.[23] Although the PDA amended Title VII in 1978, it was
more than twenty years before a lawsuit was brought challenging the
ongoing discrimination by employers and health insurers. I will
discuss why this is below.

Jennifer Erickson was the perfect plaintiff
representative for a class action lawsuit alleging Title VII gender
discrimination in the context of employers’ exclusion of
contraceptives from insurance coverage. Ms. Erickson is a
twenty-seven year old, attractive, white, married woman who works
as a pharmacist for the Bartell Drug Company in Washington State.
Both she and her husband Scott have full-time jobs. When she
testified on September 10 at the Congressional EPICC hearing, Ms.
Erickson noted that she and Scott were “working hard to save
money.”[24] They had recently bought their first house and
spent a lot of time fixing it up. Jennifer testified that while she
and Scott were “both looking forward to starting a family,
[they wanted] to be adequately prepared for the financial and
emotional challenges of parenting.”[25] Someday, when she and Scott were
“ready,” they planned to have one or two children but
“could not cope with having twelve to fifteen children, which
is the average number of children women would have during their
lives without access to contraception.”[26]

As a middle class woman and as a health
professional, Jennifer Erickson was adversely affected by her own
insurer’s policy, and her customers’ insurance
policies, which similarly excluded contraceptive coverage.
Contraception was her “most important, ongoing health
need” and her monthly prescription of oral contraceptives
cost her about $30.00 per month. She did not realize that
Bartell’s prescription drug plan didn’t cover
contraceptives until after she started working there[27] (and this lack of information is certainly not
unusual, the vast majority of insured persons (even highly educated
professionals) do not know the particulars of their coverage until
they attempt to use their plan to purchase a prescription or obtain
coverage for a medical service and are told their plan
doesn’t insure for that service or prescription).[28] Furthermore, very few people have the luxury of
choosing an employer based on the specific coverage its insurance
plan offers. At the September 10 EPICC hearing, Jennifer explained
how although the expense of her own contraception was far from
nominal, as a professional with a husband who also worked
full-time, she could afford the cost of purchasing oral
contraceptives every month. In contrast, many of the women she
served as a pharmacist often could not afford their own
contraceptive prescriptions. It was frustrating professionally for
Jennifer to have to tell the women at her pharmacy that their
insurance plans did not cover contraception; she felt that she was
failing in some way in her duty as a health care provider. Sadly
Jennifer said, she had “seen women leave the pharmacy
empty-handed because they [couldn’t] afford to pay the full
cost of their birth control pills, and it [broke] her
heart.”[29]

Thus, Jennifer became the first plaintiff to
challenge this exclusionary practice by bringing a lawsuit against
her employer. Title VII civil rights claims are difficult to bring;
there’s a shortage of lawyers willing to take on such cases
and a shortage of willing clients because private civil rights
attorneys often ask clients to pay the out-of-pocket costs for
litigation. [30] Fortunately, this issue was ripe for litigation,
given the prior EEOC decision, the pending legislation in various
states, and the release of Viagra, which was covered by many
insurance plans immediately after being placed on the market,
causing a firestorm of controversy about why Viagra should be
covered and contraception not.[31] Finally this lawsuit was brought because Planned
Parenthood, a well-funded, reputable reproductive rights
organization, was willing to take on Jennifer’s case in an
effort to effect this important change.[32]

Jennifer Erickson had comprehensive health
insurance through her employer and thus was not dependent on the
government for any sort of public assistance. Yet, Jennifer
Erickson’s “comprehensive” health insurance did
not cover her most important, ongoing health need –
contraception. Jennifer represented only a class of similarly
situated plaintiffs, and Judge Lasnik’s ruling, while
certainly influential, did not bind any employer outside of
Washington. However, Jennifer’s situation is typical for
millions of women nationwide. Middle class women with private
health insurance often cannot get their prescription contraception
covered by their plans. Ironically, low-income women who qualify
for Medicaid have better contraception coverage.[33]

Bartell’s benefit plan covered “all
prescription drugs, including a number of preventive drugs and
devices, such as...drugs to prevent allergic
reactions.”[34] There were no allegations by Erickson that
Bartell’s exclusion of contraceptives was the result of
intentional discrimination. Judge Lasnik noted though that
regardless of intent, the mere “exclusion of women-only
benefits from a generally comprehensive prescription plan is sex
discrimination under Title VII.”[35] Because there was no evidence that Bartell’s
choice of health insurance was “intended to hinder women in
the workforce or to deprive them of equal treatment in employment
or benefits” the Judge surmised that “the exclusion of
women-only benefits is merely an unquestioned holdover from a time
when employment-related benefits were doled out less equitably than
they are today.”[36] Indeed, when Judge Lasnik’s decision was
announced, Bartell asserted “it was never our intention to
discriminate”[37] and since April 2001 (two months before the actual
ruling) the company has offered prescription contraceptive benefits
in the medical plan for union employees.[38] Consistent with Judge Lasnik’s ruling,
Bartell claimed it would “take prompt actions to add these
benefits to the non-union employees’ plan” (Jennifer
Erickson was a non-union employee).[39]

Bartell argued that its plan also excluded coverage
for Viagra, the male impotency drug, in contrast to many other
plans, which immediately covered Viagra when it was introduced to
the market in 1997, but continued to exclude contraception. In
fact, by May 1, 1998, almost fifty percent of all Viagra
prescriptions were subsidized by insurance plans.[40] The Erickson court left open the question (which
was not before them) of whether excluding Viagra may later be
determined to violate male employees’ rights under Title
VII[41] (possibly opening the door for future litigation
by male classes against employers that do not choose insurance
plans that cover Viagra). Judge Lasnik also briefly addressed the
defendant’s contention that the plan’s exclusion of
infertility drugs made its exclusion of prescription contraceptive
drugs and devices neutral and not discriminatory. He reasoned that
an exclusion of infertility drugs,

[A]pplies equally to male and female employees,
making the coverage offered to all employees less comprehensive in
roughly the same amount and manner. The additional exclusion of
prescription contraceptives, however, reduces the comprehensiveness
of the coverage offered to female employees while leaving the

Thus, Bartell’s exclusion of other
reproduction-related prescription drugs did not cure the
discriminatory practice of excluding contraceptives in
particular.

Bartell suggested that the issue of contraceptive
coverage was best addressed by the legislature but Judge Lasnik
rejected this assertion, emphasizing the role of the judiciary in
interpreting existing laws.[43] Since Erickson brought this case as a Title VII
claim, it was the province of the federal judiciary to decide
whether this specific employer practice violated that statute.
Lasnik thought it “interesting to note that Congress and some
state legislatures are considering proposals to require insurance
plans to cover prescription contraceptives, [but] that fact [did]
not alter [the] Court’s constitutional role in interpreting
Congress’s legislative enactments in order to resolve private
disputes.”[44]

Indeed, it certainly was the Court’s role to
assess the merits of the Title VII claim in this particular case,
but the passage of the federal and state legislation mentioned by
Judge Lasnik is essential to give all women access to contraceptive
coverage. Title VII’s prohibition on discrimination in the
workplace applies only to employers with fifteen or more employees,
thus millions of women who work for small businesses, or work
part-time and thus purchase outside private health insurance, would
be still without contraceptive coverage, even if suits such as this
one were brought and won in all federal district courts.[45] In addition, Title VII contains an exemption for
religious organizations; thus, such organizations (e.g. religious
schools, associations, etc.) are free to discriminate where secular
employers are not.[46] While I am not contesting the validity of this
religious exemption from Title VII, if all religious employers were
exempt from providing contraceptive coverage to their employees,
another large group of women would lack the power to gain such
coverage. While Erickson’s importance as a landmark decision
cannot be overemphasized, to ensure coverage for all women Congress
and the states must pass legislation mandating coverage by
insurance plans with no, or a very limited religious exemption that
provides affordable alternatives through which religiously-employed
women can obtain contraception.

State Legislation

In the absence of private insurers and employers
voluntarily providing contraceptive coverage and Congress’s
failure to pass a comprehensive bill requiring such coverage, many
states have enacted their own legislation to mandate insurance
coverage of prescription contraception.[47] At the end of 2001, seventeen states had enacted
laws or regulations requiring equitable insurance coverage of
contraception.[48] Although this is less than half of the states, it
is a drastic improvement from just three years ago, when only one
state had such a law.[49] North Carolina for instance, recently enacted a
contraception coverage law, requiring that

[E]very insurer providing a health benefit plan
that provides coverage for prescription drugs or devices shall
provide coverage for prescription contraceptive drugs or devices.
Coverage shall include coverage for the insertion or removal of and
any medically necessary examination associated with the use of the
prescribed contraceptive drug or device...every insurer providing a
health benefit plan that provides coverage for outpatient services
provided by a health care professional shall provide coverage for
outpatient contraceptive services.[50]

Although many states are taking the initiative to
pass their own legislation, the National Abortion and Reproductive
Rights Action League (NARAL) released a report in December, 2001
concluding that “a majority of states still are not doing
enough to promote access to contraception.”[51] “Who Decides? A State-by-State Review of
Abortion and Reproductive Rights, 2002” graded states not
only on whether they had enacted some form of insurance legislation
to cover contraception but also on whether reproduction-related
legislation enhanced or impeded women’s ability to make
decisions about childbearing, protected or harmed women’s
health, and reduced the need for abortion by reducing unintended
pregnancies and expanding women’s health options.[52] NARAL is a reproductive rights organization
committed to

develop[ing] and sustain[ing] a constituency that
uses the political process to guarantee every woman the right to
make personal decisions regarding the full range of reproductive
choices, including preventing unintended pregnancy, bearing healthy
children, and choosing legal abortion.[53]

In 2001, twenty-two states introduced bills to
require health insurance plans to provide coverage for
contraceptives and three states enacted such bills.

Although the fact that seventeen states now have
regulations that address the lack of private insurance coverage for
contraception demonstrates that the momentum for equitable
insurance coverage has been building at many levels of government,
twelve of the seventeen states that enacted contraceptive equity
legislation over the last three years included “denial
clauses” that allow employers and/or insurers to refuse to
provide contraceptive coverage on religious or moral
grounds.[54] Despite widespread public opposition to such
denial or “conscience” clauses, many states would not
have passed the contraception legislation without an exemption for
employers and insurers that object to providing or paying for
contraceptive coverage. Hawaii seems to have struck an acceptable
balance in its contraceptive services statute. Religious entities
(that primarily employ persons who share the employer’s
religion and that are not staffed by public employees) are exempt
from the mandate requiring health plans to include contraceptive
services but allows those employees who want contraception but are
employed by religious entities to directly purchase such services
at the “pro rata share of the price the group purchaser would
have paid for such coverage had the group plan not invoked a
religious exemption.”[55] Thus, the statute satisfied lawmakers on both
sides of the religious exemption issue, allowing it to be passed,
but provided women affected by the exemption with an alternative
way of accessing affordable contraception.

The fierce debate over whether a state’s
contraception legislation should contain a religious exemption has
been holding up the passage of such laws in a number of states. For
example, New York has been attempting to pass a women’s
health bill that would require health insurers to cover
contraceptives, and a variety of other health care treatments for
women, including screenings for osteoporosis, cervical cancer and
breast cancer.[56] Republican and Democratic lawmakers though, have
been divided over the specifics of the bill, particularly because
Republicans have long insisted that a bill requiring contraceptive
coverage contain a “conscience clause” exemption for
the Roman Catholic Church, as the use of “artificial”
birth control violates church teachings. The Democrats have opposed
that type of exemption, but recently the State Senate believed it
had come to a compromise regarding the divisive issue. The
compromise conscience clause would be much narrower than those
proposed in the past, providing that a religious institution
“could deny birth control coverage through its employee
health plan only if most of the people it employs and most
of the people it serves share that religion”[57] (emphasis added).

Not surprisingly, the bitter disagreement on the
religious exemption between New York Democrats and Republicans is a
highly sensitive issue. Cardinal Edward Egan of the Catholic
Archdiocese of New York visited New York’s state capital last
March to voice his opposition to any legislation that forced
contraceptive coverage without an exemption for religious
institutions that oppose birth control.[58] Egan said he would rather see the bill die in the
Senate (even though he supported the coverage for cancer and
osteoporosis screenings) than have it pass without the religious
exemption.[59]

The following is a brief description of the six
types of FDA-approved reversible prescription contraception. To
fully understand why women need contraception coverage of all
available methods, it is important to know that contraception
safety, effectiveness and delivery methods vary somewhat among the
FDA-approved forms of prescription birth control.

Oral Contraceptives (the “Pill”)

The Pill, approved by the FDA in 1960, is the most
popular form of reversible birth control in the United
States.[60] It suppresses ovulation through a combination of
the hormones estrogen and progestin and must be taken every day for
maximum effectiveness in preventing pregnancy. Because the woman
taking the pill must remember to take it every day, the typical
failure rate of oral contraceptives is about five percent. In other
words, in typical (not perfect) use, the pill is about ninety-five
percent effective.[61]

In addition to preventing pregnancy, the pill has
numerous health benefits including, making a woman’s periods
more regular and lighter, protecting against pelvic inflammatory
disease and protecting against ovarian and endometrial
cancers.[62] Certain pills, such as Ortho-Tricyclen, are
prescribed to women for the relief of an acne problem.[63] There are minor side effects associated with oral
contraceptives, such as nausea, breast tenderness and weight gain,
but most of these subside after a few months of use.[64] Although for forty years the pill has been
extensively studied for the adverse health consequences it may
cause, for women who do not smoke, the pill is a very safe method
of birth control.[65] Perhaps the most serious health question has been
whether using the pill causes breast cancer, but no studies have
proven that there is a significant link between pill use and the
incidence of breast cancer.[66]

The pill is prescribed in monthly cycles and thus
women must purchase a new pack of pills every thirty days. In
addition, obtaining a pill prescription requires at least one visit
to the gynecologist every six months to a year. The approximate
yearly cost of using oral contraception is over $400.00.

Injectible Contraceptives
(Depo-Provera/Lunelle)

Depo-Provera, approved by the FDA in 1992, is the
brand name for the hormone injection (progestin) given by health
professionals into a woman’s arm or buttocks every three
months.[67] Depo-Provera also prevents pregnancy by inhibiting
ovulation and is highly effective – with a failure rate of
only .3%.[68] Because, unlike the pill, the woman using
Depo-Provera does not have to remember to ingest anything on a
daily basis, the failure rate is extremely low. However, using
Depo-Provera requires a visit to the physician or clinic every
three months to get the injections. And, there can be minor side
effects, such as irregular periods and weight gain and some women
may be allergic to the medication entirely.[69] Long-term, Depo-Provera may cause weakened bone
density because it lowers a woman’s estrogen level, but this
can be prevented through calcium supplements and exercise.[70] Depo-Provera’s cost is comparable to that of
oral contraceptives, about $400.00 per year.

Lunelle is a brand-new contraceptive drug, approved
by the FDA in October, 2001 that combines the hormones progestin
and estrogen to inhibit ovulation.[71] Lunelle is injected once per month by a health
care provider during the first five days of a woman’s
menstrual period. Clinical trials indicate that the failure rates
of Lunelle are less than one percent and the most common side
effect was weight gain, which caused six percent of the women in
the clinical trials to discontinue its use.[72]

Implantable Contraceptives (Norplant)

Norplant is the brand name of an implantable
hormonal method that was approved by the FDA in 1990 (its newer
version, Norplant 2, was approved in 1996).[73] Like Depo-Provera, it is a progestin-only
contraceptive but its matchstick-like rods are surgically implanted
under the skin of the upper arm, providing protection for up to
five years (but Norplant can be removed earlier if pregnancy is
desired before the five years are expired).[74] Norplant is another highly effective
contraceptive, preventing pregnancy over ninety-nine percent of the
time. Its main advantage is that it requires no regular maintenance
by the woman, although the implant must initially be inserted by a
health professional. There are minor side effects such as weight
gain and breast tenderness and there may be inflammation or
infection at the sight of insertion. Now that Norplant has been on
the market for over ten years, many women have gone through the
entire five year cycle with a Norplant implant and some report
difficulty in removal, including scarring at the insertion
site.[75] Because of the insertion by the health
professional, the start-up cost of Norplant is higher than the
other hormonal methods – about $900.00. Over the five year
period, the total cost of Norplant though, including removal, is
approximately $1500.00, which is actually less than that of both
oral contraceptives ($2200) and Depo-Provera ($2000) over a five
year period.[76]

Intrauterine Devices (IUDs)

IUDs are medical devices containing either copper
or the hormone progesterone, inserted into the uterus by a health
care professional. Makeshift IUDs have existed for over one hundred
years, but IUDs did not gain widespread acceptance by the medical
community until the late 1960s.[77] The reputation of the IUD suffered immensely in
this country when in the early 1970s thousands of lawsuits were
filed against manufacturer A.H. Robins alleging that its popular
Dalkon Shield IUD caused infection, miscarriage, birth defects and
even death to women using it.[78] The Dalkon Shield was removed from the market and
current IUDs have been declared safe, especially for couples in
monogamous, stable relationships where there is little risk of
sexually transmitted infection.[79]

IUDs are highly effective, (copper IUDs are
currently the most effective reversible method of birth control
available in the United States) with overall failure rates of less
than two percent, and can be left in place for up to ten
years.[80] The initial cost is high – about $600 in the
first year, but over five years the total IUD cost is between $1000
and $2000 (depending on whether the woman uses the copper or
progesterone type; the copper IUD is less expensive).[81] Currently, IUDs are far more popular with women in
Europe than in the United States, probably because of the negative
publicity that surrounded IUDs in the 1970s.[82]

Diaphragms/Cervical Caps

The diaphragm is a removable, non-hormonal
(barrier) method that while initially must be fitted and sized by a
health professional, is then inserted and removed by the woman
before and after sexual intercourse. Diaphragms must be used with
spermicide but overall effectiveness is only about eighty percent,
giving the diaphragm a relatively high failure rate of twenty
percent.[83] Diaphragm users must be quite vigilant, inserting
the device before intercourse and leaving it in place for at least
six hours but no more than twenty-four hours after
intercourse.[84] The cervical cap is very similar to a diaphragm in
structure and method but can be left in place for forty-eight
hours, protecting for multiple acts of intercourse within this
time, but is somewhat less effective (thirty-three percent failure
rate). The costs for diaphragms and cervical caps is between $500
and $800 per year and weight fluctuations or giving birth will
require the refitting and possibly purchase of a new diaphragm.

Emergency Contraceptives (“Morning After
Pill”)

In 1997 the FDA approved the emergency use of oral
contraceptive pills to prevent a woman from becoming pregnant
after she has had sexual intercourse where contraceptives
failed or no contraceptives were used.[85] Preven (the brand name of one of the popular
emergency regimens) is about seventy-five percent effective in
preventing pregnancy by delaying or inhibiting ovulation or by
keeping a fertilized egg from implanting in the uterine wall. The
regimen (first developed in 1974 but only approved after the FDA
requested pharmaceutical companies submit applications for
emergency contraceptive use of their already-approved oral
contraceptives[86] ) consists of two contraceptive pills taken within
seventy-two hours of unprotected intercourse and two pills taken
twelve hours later.[87] Side effects may include nausea, vomiting, and
breast tenderness. While emergency contraception is only
recommended for use in emergency situations and not as a
woman’s regular form of birth control, it has filled an
important gap in women’s contraceptive options.

Clearly, there are a number of safe, effective,
reversible birth control methods available by prescription in the
United States. Like any medical drug or device, each method
involves some risk or causes some side effects. Women should be
able to evaluate each method with their physician and decide which
of those risks they are willing to absorb, and which side effects
are tolerable, given the woman’s desired level of
effectiveness. For women in a stable relationship with one partner,
an IUD may be an excellent choice because her risk of sexually
transmitted infection is low. For those women who do not want to
think about birth control every day, the pill may be inappropriate
but Norplant may be an ideal method. Some women may be willing to
forgo some effectiveness in exchange for not using a hormonal
method and thus not altering their body chemistry. Thus, a
diaphragm may be the right contraceptive approach. When a woman
forgets to take her contraceptive pill, insert her diaphragm, or is
forced to have intercourse against her will, the morning-after pill
can be used as an effective check on the risk of becoming
pregnant.

The point here is that we are very fortunate to
have a wide range of safe, effective birth control choices
available in the United States, but a woman must be able to make a
choice that’s appropriate for her particular lifestyle, body
and age. Birth control is not one-size-fits-all. A woman should not
have to base her choice of birth control on whether her insurance
plan covers a particular method. Just as someone who is allergic to
penicillin has the option of taking erythromycin and still having
it covered by their prescription drug plan, a woman with a history
of familial breast cancer should have the option of choosing
Depo-Provera instead of oral contraceptives if she feels
uncomfortable with the minimal breast cancer risk the pill may
present. A married woman who has completed her family but does not
want to undergo surgical sterilization should be able to use an IUD
without worrying that she cannot afford the start-up cost. Nor
should women without health insurance coverage be forced to choose
less expensive over-the-counter methods of birth control, such as
condoms, sponges and spermicides. These non-prescription methods
are less effective than prescription contraceptives and have more
potential for human error.

Another problem created by sporadic coverage of
reversible contraceptive methods is the choice of many women to
undergo essentially irreversible, surgical sterilization because
their insurance policy covers sterilization services but not other
prescription methods of contraception.[88] While some women are choosing sterilization (tubal
ligation, or for men, vasectomy) because they are absolutely sure
they do not want more children, some decide prematurely on
sterilization because the prospect of paying hundreds of dollars
per year for ten years or more in reversible contraceptive costs
pushes women towards sterilization when it may not necessarily be
the ideal method for them.[89]

All of these reversible prescription methods are
FDA-approved but not all of them fit every woman’s birth
control and health needs.[90] Covering just one or two methods of contraception
should not be sufficient for employers and insurers; rather,
federal and state legislation should mandate that all
FDA-approved contraceptive methods be covered by comprehensive
prescription drug plans, so that women base their contraception
choices on what is right for their bodies and not their
wallets.

IV. Historical Background of Family Planning

Is the exclusion of prescription contraceptives
from private health insurance plans an “unquestioned
holdover” from a less enlightened time, (as Judge Lasnik
suggested in Erickson) or are there other reasons why historically,
private health insurers exclude contraceptives from otherwise
comprehensive prescription drug coverage? This section will examine
the different types of health insurance available in this country,
the extent to which each of these insurance mechanisms covers
prescription contraceptives and possible explanations for why
contraceptives are commonly excluded from insurance coverage.

Medicaid

Medicaid is a public health insurance program
created in 1964 to cover the health care needs of the impoverished.
It is jointly funded by federal and state governments.[91] As of March, 2002, Medicaid covered approximately
thirty-six million individuals.[92] State Medicaid programs must cover all
FDA-approved prescription drugs for their medically accepted
purposes.[93] The only FDA approved drugs excluded from this
mandate are those used for anorexia, weight loss, cosmetic
purposes, smoking cessation, the promotion of fertility,
barbiturates and prescription vitamins.[94] Prescription contraceptives fall into none of
these excluded categories. Just as federal law requires Medicaid
providers to purchase Viagra, they must also purchase
contraceptives.

Medicaid is the principal public funding source for
contraception, accounting for over fifty-eight percent of all
federal family planning expenditures.[95] For extremely low-income women, Medicaid is
a viable option for obtaining contraceptive services. However,
eligibility for Medicaid is very limited – in most states a
woman must usually be single and have at least one child (thereby
making her eligible for Aid to Families with Dependent Children
[AFDC]) benefits, which are often tied to Medicaid eligibility),
and an income that is about fifty percent of the poverty level
(about $6,000 for a family of three).[96] Thus, while those women who receive Medicaid
benefits may rely on coverage for contraceptive-related physician
visits and prescriptions, Medicaid covers only the poorest women,
leaving many working-class and middle-class women who have
employer-based or privately purchased health insurance without
prescription contraception coverage.[97]

Health Maintenance Organizations (HMOs)

Today’s typical HMO is an organization that
contracts with physicians to provide health care services to people
who purchase insurance through the HMO. The HMO pays the physician
a capitation (a fixed payment per patient) in exchange for the
physician’s agreement to care for the HMO’s insured.
The HMO structure was developed as a way to control health care
costs and has been especially appealing to young, healthy people
who have few health care needs.[98] The general premise behind these health insurance
organizations is that healthy patients will not use up the entire
capitation payment provided to the physician by the HMO, while sick
patients will use more than their share of the capitation. In an
ideal situation, there will be more healthy patients than sick
ones; therefore the physician will continue to earn a
profit.[99]

Commercial Health Insurance

Commercial health insurers such as AETNA and Cigna
simply reimburse the insured for costs incurred in obtaining
medical care. There are generally fewer restrictions for insureds
(e.g. they have a wider choice of physicians) in commercial plans
than in HMOs, but customers pay higher premiums than those in HMO
plans.[100]

Scope of Coverage

According to a comprehensive study conducted by the
Institute of Medicine in 1995, only forty percent of HMOs covered
all five of the FDA-approved reversible contraceptive methods
included in the study – IUDs, diaphragms, hormonal implants
and injectables (Norplant and Depo-Provera) and oral contraceptives
(the “Pill”).[101] Seven percent of HMOs provided no
contraceptive coverage at all and the coverage for selected methods
varies widely (from 59 percent for Norplant insertion to 86 percent
for IUDs).[102] In addition, many HMOs require co-payments
for these drugs and devices.[103] Commercial health insurers are far worse
offenders when it comes to failing to cover contraceptives. While
over eighty-five percent of commercial health insurance policies
cover surgical sterilization services and sixty-six percent cover
abortion, “none of the five reversible methods...is
routinely covered by more than forty percent of typical
plans” (emphasis added). Furthermore, “half of the
large-group plans cover no methods at all, and only
fifteen percent cover all five” (emphasis
added).[104] Oral contraceptives are the most commonly
used reversible method but are routinely covered by only one-third
of large group plans even though virtually all large group plans
cover prescription drugs generally.[105] Thus, two-thirds of large group plans that
offer prescription drug coverage do not cover oral contraceptives.
The Institute study also found that despite the fact that ninety
percent of group plans cover medical devices generally,
“less than twenty percent of these plans cover IUDs or
diaphragms and [only] twenty-five percent cover hormonal
implants.”[106] Not only do these coverage statistics reflect
a wholesale problem in contraceptive coverage generally, but they
also demonstrate that insurers are more likely to cover less
effective and less cost-effective methods of contraception. The
most cost-effective reversible contraceptive methods are the copper
IUD, Norplant and Depo-Provera.[107] The IUD and Norplant have high initial costs
but become more cost effective over a longer usage period.[108] In contrast, oral contraceptives, at a cost
of about $30 per month, have very low start-up costs, but are less
effective contraceptives because of the potential for human
error.[109] Thus, not only are insurance companies making
poor economic decisions in their failure to cover many prescription
contraceptives, but they are also making poor medical choices when
they choose to cover only selected methods and then choose less
effective methods to cover.

Thus, the vast majority of non-governmental health
insurance plans do not cover all FDA-approved prescription
contraceptive methods. And, while a majority of HMOs cover at least
one method, a majority of commercial group plans cover no
prescription contraceptive drugs or devices.[110] First, why the discrepancy between HMOs and
commercial insurers? According to the Institute of Medicine study,
in their efforts to cut the costs of health care, HMOs historically
have emphasized preventive care.[111] In contrast, the fact that commercial
fee-for-service insurance is least likely to cover contraceptives
is “consistent with [the industry’s] historic
traditions...providing coverage of surgical services but not
covering preventive care.”[112] One reason why traditional fee-for-service
insurers may have historically been resistant to covering
preventive care is that there is always the chance that the
subscriber will switch employers, providers, or plans and thus the
outlays on preventive care by that insurer will have been
“wasted” on a subscriber who will no longer save the
original provider subsequent health care costs as a result of the
preventive care.[113] Contraception qualifies as preventive care,
because it works to prevent pregnancy, which while certainly not a
disease, is a medical condition that requires substantial health
care.

In fact, pregnancy and giving birth are far more
expensive than contraception. The policy of most insurance
companies to cover medical conditions and costs resulting from
pregnancy – prenatal care, delivery and baby care – but
not cover prescription contraception is utterly cost
ineffective.[114] According to the American College of
Obstetricians and Gynecologists, a “fifteen percent increase
in the number of oral contraceptive users in a health plan would
provide enough savings in pregnancy costs alone to provide oral
contraceptive coverage for all users in the plan.”[115] Childbirth costs average between $3,000 -
$5,000 per woman[116] and that figure drastically increases when a
child is born with a low birth-weight.[117] In contrast, the average cost for a one year
supply of birth control pills is $400.[118] Another study conducted by The Alan
Guttmacher Institute concluded that the average total cost of
adding coverage for the full range of reversible contraceptives to
health plans that do not currently cover them will increase total
health insurance costs for employees by $21.40 per employee per
year, $17.12 of which would be borne by the employer. This means
that employer cost would be $1.43 per employee per month –
less than one percent of employers’ costs of providing
employees with medical coverage.[119]

In 1995, researchers at Princeton’s Woodrow
Wilson School conducted a comprehensive study to determine the
clinical and economic impact of fifteen different contraceptive
methods.[120] The study concluded that all fifteen
contraceptives examined were more effective in preventing pregnancy
and less costly than using no contraceptive method.[121] The researchers conclusively determined that
“contraceptives save health care resources by preventing
unintended pregnancies.”[122] If women of childbearing age use no
contraceptive method over five years, the result will be 4.25
unintended pregnancies at a cost to private third-party payers of
$14,663[123] (this figure is based on 1993 health care
costs and thus would be higher in 2002 dollars). Legally, insurance
companies and employers cannot exclude pregnancy-related costs from
an otherwise comprehensive insurance plan,[124] thus, the economic costs of unintended
pregnancies must be borne by insurance companies and employers
should the woman choose to go through with the pregnancy and
birth.[125]

Why do insurance plans that offer comprehensive
coverage of almost all FDA-approved prescription drugs so often
exclude contraceptives? I argue that the reasons for this common
exclusion are based in the historically negative attitudes toward
sexuality and anything related to sexual expression in the United
States; the political influence of the Catholic Church and its
staunch opposition to any use of contraception; and the lack of
acknowledgment by the insurance community that contraception is a
“medically necessary” service for all women for the
majority of their lives.

Attitudes

In countries such as France and Sweden, sexuality
is seen as “normal and positive;” sexuality education
does not focus on the promotion of abstinence but on providing
reliable information about contraceptives, prevention of HIV and
other STDs and the formation of respect and responsibility within
relationships.[126] Sweden is the country with the lowest teenage
birthrate; it can hardly be argued that it is simply coincidental
that for the past fifty years, young people there receive mandatory
sexuality education in addition to government-sponsored
contraceptive services, which are usually integrated into regular
medical care.[127]

In contrast, the United States has a long history
of having negative social and political attitudes towards sex,
especially sex between unmarried persons. In 1872, during the
famously prudish Victorian era, Congress passed what was commonly
called “The Comstock Act,” named after Anthony
Comstock, the morals crusader who instigated the bill. The Comstock
Act outlawed the interstate dissemination of any “article of
an immoral nature, or any drug or medicine or any article whatever
for the prevention of conception.”[128] Contraceptives were deemed obscene and thus
remained illegal in the U.S. for a good portion of the twentieth
century.

In 1912 the modern birth-control movement began
with Margaret Sanger, a public health nurse, who challenged the
anti-contraceptive laws by opening the first family planning clinic
in Brooklyn, New York to circulate information about and provide
access to contraception.[129] However, it was not until 1965 (almost thirty
years after the American Medical Association endorsed birth control
and five years after the FDA approved the first birth control
pill[130] ) that in Griswold v. Connecticut the Supreme
Court declared it unconstitutional to prohibit contraceptive use.
[131] Even the 1965 Griswold decision though did
not send a clear message that sex and contraception was behavior
that American society found totally acceptable. The decision
focused on married couples and their right to use contraception,
thus continuing to perpetuate the morality claim that sex was only
acceptable within the institution of marriage.[132] It was not until 1977 in Carey v. Population
Services[133] that the Court extended its decision to
teenagers seeking contraception, striking down laws that prohibited
teenagers from obtaining contraceptive services.

Currently, political and religious groups pressure
school districts not to allow discussion of contraception or
abortion in sexual education classes. Of the school districts that
mandate sexuality education (unlike many European countries, the
United States’ local control of education means that there is
no national mandate of sexuality education in public
schools, leaving school districts to decide whether to include
any type of sexual education in the curriculum), thirty-five
percent require that “abstinence be presented as the only
appropriate option outside of marriage for teenagers and that
contraception either be presented as ineffective in
preventing pregnancy and HIV and other STDs or not covered at
all” (emphasis added).[134] In 1996, Congress passed the Personal
Responsibility and Work Opportunity Reconciliation Act, better
known as the Welfare Reform Act. The Act makes numerous findings
about the public costs of unintended pregnancies, but repeatedly
places the blame on “out-of-wedlock” births,
emphasizing the importance of having sex only within the bounds of
marriage.[135] Although some might argue that this standard
for sexual relations is an admirable aspiration, it simply does not
reflect reality. Sexual desire is a natural, human emotion that
most people of reproductive age act on, whether they are married or
not.[136] Furthermore, even if all sex took place
within a monogamous, married relationship, the need for
contraceptive education, information, and access would not be
diminished. Few American married couples want more than two
children.[137]

The election of George W. Bush, an anti-choice,
Republican president who opposes the funding of family planning
services, demonstrates that Puritanical attitudes towards sexuality
in this country are not a thing of the past. Since his election,
George W. Bush has instituted a number of anti-family planning
policies. On his first day in office, Bush reinstated the
“global gag rule” that President Clinton had previously
repealed (it was originally a Reagan policy), cutting off U.S.
international aid money from going to any family planning
organization that provided women with legal abortions, advocated
changes in abortion-related policies and or counseled women on the
option of legal abortions.[138] Later that year, the Bush administration
refused to approve a New York proposal that would provide
subsidized contraceptive services to hundreds of thousands of
low-income New Yorkers through a combination of state and federal
Medicaid money.[139] Then, Bush attempted to eliminate
contraceptive coverage for federal employees, but that proposal was
overturned by the House Appropriations Committee.[140] Finally, in his fiscal year 2003 budget
proposal to Congress, President Bush will ask for $135 million for
"abstinence-only" sexuality education programs. This constitutes a
thirty-three percent increase over this year's funding level, and
fulfills the President's campaign promise to spend as much money on
abstinence education as on family planning services for
teenagers.[141]

Numerous studies have demonstrated that public
policies that promote “abstinence-only” are ineffective
in reducing unintended pregnancies.[142] In fact, there has not been a single study
proving that abstinence-only policies are an effective, long-term
method of fertility control.[143] Most people of reproductive age are sexually
active and thus any sexual education in schools or public
information programs must focus on contraception.[144] In the United States, we tend to focus on
whether young people are having sex, rather than educating
them from an early age on the benefits of contraception and STD
prevention – giving them the tools to exercise personal
responsibility when they choose to become sexually active. Although
growing up in an economically or socially disadvantaged family is a
strong predictor of whether teenagers will become pregnant, at
all socioeconomic levels, American teenagers are less likely
to use contraceptives than their peers in countries like France,
Sweden, Great Britain and Canada.[145] As I will discuss further below, the instance
of unintended pregnancy is certainly not confined to teenagers, but
people learn lifelong behaviors when they are quite young; if we do
not responsibly educate our adolescent population about
contraception and give them access to contraceptive services, they
will grow to be uninformed adults without knowledge or affordable
access to contraception, perpetuating the instance of unintended
pregnancy.

Religion

The influence of religious organizations, in
particular the Roman Catholic Church, on political and social
policy has contributed to the negative attitudes Americans have
toward sexual expression and the use of contraception.
Historically, the Catholic Church has opposed artificial
contraception, sterilization and abortion[146] and has been a powerful political force in
the United States. In the 1950s, 60s and 70s, presidents such as
Eisenhower, Johnson and Nixon feared a political backlash from the
Catholic Church and Catholic voters if the federal government
funded family planning services.[147]

The initial impetus for federal family planning
policy came from policy activists who believed that the world was
headed for global disaster as a result of overpopulation that would
threaten political, economic and social stability in the United
States.[148] In the post-WWII era, private organizations
and philanthropic foundations played an essential role in
initiating family planning programs designed to control population
growth because the federal government and pharmaceutical companies
avoided supporting contraceptive research and development.[149] They avoided contraceptive research largely
as a result of pressure from the Catholic Church and because in the
post WWII era, twenty-five percent of voting Americans were
Catholic.[150]

In the 1960s, with Johnson’s Great Society
measures, the justification for the need for extensive federal
family planning shifted from population control to a way in which
to alleviate poverty and reduce rising welfare costs.[151] As a result, family planning programs were
greatly expanded but not only faced continued opposition from the
Catholic Church but accusations from the African-American community
that family planning targeted poor blacks as a way to reduce their
family sizes in particular.[152] It was not until the early 1970s that the
importance of family planning for the liberation and equality of
women was fully realized, as support for a Constitutional right to
abortion grew, culminating in the Supreme Court’s infamous
1973 decision, Roe v. Wade.[153]

For sure, the Catholic Church is not the only
religious organization that has opposed family planning, sexual
education and contraceptive use. In fact, despite the
Church’s official stance on contraception, Catholic couples
use contraception at about the same rate as non-Catholics.[154] And, although Catholic voters were
twenty-five percent of the voting population, in 1969 eighty-nine
percent of Americans supported government-sponsored dissemination
of birth control information. The growth of the conservative
Christian Right (non-Catholic) in the late twentieth century and
its influence on the Republican Party has also had a profoundly
negative effect on the government’s family planning policies
in the 1980s and 1990s, and the attitudes towards sexuality many
people still hold.[155]

“Medically Necessary”

“There is nothing optional about
contraception. It is a medical necessity for women during
thirty years of their lifespan. To ignore the health benefits of
contraception is to say that the alternative of twelve to fifteen
pregnancies during a woman’s lifetime is medically
acceptable”[156] (emphasis added).

Generally, insurance policies exclude coverage for
medical services, equipment or supplies which are not considered
“medically necessary.”[157] Medical necessity is almost
“universally employed as the test for coverage in
plan/subscriber contracts.”[158] What is meant by this legal term of art is
often ambiguous and in such cases where the language is ambiguous,
in considering whether a treatment or equipment can be excluded
under the medical necessity doctrine, courts will look to the terms
of the policy, the nature of the treatment and the circumstances
under which it was rendered.[159] Reproductive-related services that have been
held not to be medically necessary include reversals of
prior sterilization procedures and in vitro fertilization
procedures.[160] Thus far though, there do not appear to be
any cases brought claiming that contraception is a medically
necessary service and thus cannot be excluded from a comprehensive
insurance policy. Erickson v. Bartell was a Title VII claim, not
one challenging the language of the insurance policy.

The typical American woman wants only two children
and thus spends about seventy-five percent of her reproductive life
trying to prevent unintended pregnancy.[161] Therefore, it would be difficult to make a
plausible argument that contraception is not a medical necessity
for all women and couples. It is time for the health insurance
community and federal and state legislatures to recognize that
contraception is part of a woman’s basic health care
and its use is both normal and essential.[162] A basic health need is certainly medically
necessary.

V. Why It Is Necessary to Cover Contraceptive Services, Drugs and
Devices

Unintended Pregnancy

Unintended pregnancy is a global problem, and the
United States, despite its status as the richest and most
“developed” nation in the world, has one of the highest
rates of unintended pregnancy among all industrialized
nations.[163] Over fifty percent of all pregnancies in the
United States are unintended. Unintended pregnancies are not only a
problem that affects teenagers or poor women;[164] over forty percent of pregnancies to married
women are unintended.[165] Americans are not more sexually active than
people in other nations, but they are less effective users of
contraception.[166] Teenage pregnancy rates are higher in the
United States than any other developed nation aside from
Hungary.[167] But, contrary to the suggestions of the
conservative establishment, American teenagers do not have more sex
than teenagers in other nations. As Andrea Tone notes, “in
Sweden...sex among young adults is more prevalent, yet rates of
pregnancy, birth and abortion are significantly lower. The reason
is simple. Young adults in Sweden use contraceptives more
frequently than their American counterparts.”[168] Unintended pregnancy causes a number of
serious economic, social and health consequences for women,
families and the taxpaying public that could be avoided if the
rates of unintended pregnancies were reduced.[169]

Women with unintended pregnancies have lower rates
of prenatal care,[170] are more likely to expose their fetus to
damaging substances such as tobacco, alcohol and drugs and as a
result, their babies are often born with low birth weight.[171] Unwanted conceptions are at an even greater
risk of dying in the first year of life, of being abused and not
being cared for sufficiently for healthy development.[172] Babies born with a low birth weight are at
increased risk for neuro-developmental handicaps, respiratory tract
infections, learning disorders, behavioral problems, visual and
hearing problems, autism, cerebral palsy and epilepsy.[173] Low birth weight and these resulting
disorders are largely preventable if women are educated beforehand
about the dangers of unwanted and mistimed pregnancies and given
affordable access to contraception. The aforementioned disorders
that frequently occur in low birth weight babies place an enormous
drain on the resources of the public health care system, and later
in life, public education and social services programs by for
example, increasing special education expenditures.[174]

For sure, unintended pregnancies do not only
adversely affect women or the public, they also impose burdens on
the resulting babies, and other family members, including the
father and other children. A mother with an unintended pregnancy is
at a greater risk of depression and physical abuse and the
relationship with her partner is at greater risk of
failing.[175] As a result of an unintended pregnancy, an
entire family may suffer economic burden and both parents may fail
to achieve their educational and career goals. Less attention may
be paid to the other children in the family when parents are faced
with an unintended pregnancy. All of these consequences may harm
the development of a strong family unit and even destroy a
once-cohesive family.

In addition to the emotional and economic costs an
unintended pregnancy imposes on a woman and her family, women with
unintended pregnancies have approximately 1.5 million abortions
each year in the United States.[176] Fifty-four percent of unintended pregnancies
end in abortion, giving the United States the second highest
abortion rate among the fifteen Western countries with similar
reproductive behavior.[177] Although women in other Western democracies
often have easier access to abortion than those in the United
States, the U.S. ratio of one abortion to every three live births
is “two to four times higher than that in other Western
democracies.”[178]

While safe abortions performed by medically
licensed health professionals pose practically no health risks,
there are important reasons to reduce as much as possible the need
for and use of abortion. First, actual access to abortions
in the United States is not universal. While the Supreme Court has
preserved the Constitutional right of a woman’s right
to choose whether or not to terminate a pregnancy (although the
bare majority decision in Planned Parenthood v. Casey, 5-4 in favor
of upholding Roe, means that this right is constantly at risk of
being eliminated should the composition of the Court
change),[179]practical access to abortion is
limited for many women, particularly in rural areas of the country
where women may have to travel hundreds of miles to reach an
abortion provider.[180] Furthermore, many states have restrictions on
abortions ranging from mandatory waiting periods, to mandatory
parental consent, to lack of funding of abortions for low income
women.[181] Because of the limited access to abortion
many women face, after realizing they are unintentionally pregnant,
they may choose to have unsafe abortions performed by unlicensed
persons and these pose severe health consequences.[182]

Even if a woman can access a safe abortion and
afford to have the procedure done or has insurance coverage for it,
the emotional consequences of choosing abortion are an important
reason to reduce its usage as a form of
“contraception.” Having an abortion is a painful
decision for any woman to make and the long term consequences of
such an emotionally wrenching decision can be extremely hard to
overcome. Many women will feel guilty about their choice. Radical
anti-choice groups make it more difficult for women to elect this
procedure and have it done in private when they picket outside of
abortion clinics shouting at the women who enter and passing out
graphic flyers of aborted fetuses. Although it is important to
ensure that abortion remains a legal, safe and practical option for
women who want to elect it, most women would prefer never to be in
the situation where they had to make that painful choice. Increased
coverage of contraceptives reduces unintended pregnancies and thus
reduces abortion. Perversely, sixty-six percent of private insurers
offer abortion coverage, while only fifteen percent cover
contraceptives.[183]

Given the conservative political movement’s
virulent opposition to abortion rights one would think that support
for increased coverage of contraception would be universal. If we
accept that men and women will continue to be sexually active, and
that lack of coverage for contraception leads to decreased
contraceptive use and thus an increase in unintended pregnancy and
abortion, it is axiomatic that one solution to this problem lies in
increasing access and coverage to contraception.[184]

Equality and Power in the Workforce

In enacting the Pregnancy Discrimination Act,
Congress sought to equalize employment opportunities available to
women and men and prevent discrimination against female employees
based on the view that they would eventually become pregnant and
leave their jobs. “The assumption that women will become
pregnant and leave the labor force leads to the view of women as
marginal workers, and is at the root of the discriminatory
practices which keep women in low-paying and dead-end
jobs.”[185]

The ability of a woman to control the timing and
number of pregnancies is essential to her ability to participate
equally in the workplace with men. Recently, the Centers for
Disease Control declared family planning one of the top ten
achievements in public health in the 20th century noting
that “smaller families and longer birth intervals...have
improved the social and economic role of women.”[186] Women who unintentionally become pregnant are
often forced to quit their jobs, or take extended leave to give
birth and care for a newborn baby. Becoming pregnant at the
beginning or a crucial time in one’s career can have
devastating consequences for a woman’s future in the
workplace. Women who become pregnant are often perceived as not as
“serious” about their careers as men.[187] For working-class and blue-collar women, an
unexpected pregnancy might mean being fired from a job that did not
provide much security to begin with or not being able to perform
physically-demanding aspects of a labor-intensive job.[188]

If women cannot control if or when they become
pregnant, they will never attain equality with men in the
workforce. Although one should not minimize the participation of
fathers in the birth of their children, the reality is that fathers
do not have to take the paternity leave that more
progressive companies have begun to offer in recent years. While
ideally we want to encourage the full involvement of men in the
pregnancies of their partners, men do not face the same danger of
derailing their careers when they have a baby with their partner.
Physically, men bear none of the burdens that attach to pregnancy
and giving birth, while because of the physical strain, most
pregnant women will have to stop working towards the end of their
pregnancy and cannot immediately return after giving birth.
Furthermore, the unfortunate truth is that many women do not have
the luxury of sharing a pregnancy with an involved, caring mate who
will assist them with the baby after they have given birth. Women
end up bearing a disproportionate share of not only the physical
stress of pregnancy, but the mental, financial and career
implications of becoming pregnant, giving birth and raising
children. If we are committed to breaking down any barriers that
women face in attaining equality with men in the labor force, we
must be committed to providing quality, affordable contraceptive
services for any woman who wants them.

Pharmaceutical Development

For a variety of economic, regulatory and social
reasons, in recent years, the research and development of
contraceptives has stalled in the pharmaceutical industry.[189] Despite the variety of FDA-approved
contraceptive technologies available in the United States, there
are a number of areas where contraceptive options could be
improved, including prescription methods for use by males, and
methods that act as barriers both to conception and to transmission
of sexually transmitted disease (currently, the only prescription
contraceptive that accomplishes this at all is the diaphragm and as
seen above its effectiveness is far from perfect).[190] Despite the enormous social, economic, and
scientific benefits we realize from the use of contraception, for
pharmaceutical companies to invest in the exorbitantly expensive
and time-consuming process of researching, developing, seeking
approval, producing and marketing new drugs and devices, there must
be a strong, profitable, politically safe and predictable market
for new products.[191]

Comprehensive insurance coverage of contraception
is one way to insure that there is a predictable market for new
contraceptive products. If prescription contraceptive coverage is
expanded, the number of women using inexpensive non-prescription
methods of contraception will switch to more effective prescription
methods, and others will be willing to experiment with new
technologies they might otherwise not have if they had to pay out
of their own pocket for the prescription. Insurance coverage will
create a consumer population able to afford prescription
contraceptives, and thus create a larger user base for
contraceptives, giving pharmaceutical companies an incentive to
aggressively innovate and market new products.[192] In addition, a woman using prescription
contraceptives must visit her gynecologist more often than women
who are not using contraception. More frequent visits to physicians
means physicians will have a greater chance to inform women about
new contraceptive options. Thus, pharmaceutical firms can market
new technologies through physicians by providing information
packets and free samples, and women will become more aware of their
options in the process.

Why should we give pharmaceutical companies such an
incentive? Do we really need new contraceptive technologies and
services? The Institute of Medicine has concluded that yes, we do
need more contraceptive options because the contraceptive needs of
many women and couples are not being met.[193] Women want effective, safe contraceptives
that have minimal side effects. They also want methods that are
discreet and easy to use and methods that protect against both
conception and sexually transmitted infections. While in the
short-term the best thing we can do for women is provide insurance
coverage for existing contraceptive technologies, in the long-term
it is essential that new services be developed, to increase the
effectiveness of contraception and provide all women with a
convenient method. Supplying pharmaceutical companies with clear
market demand will help to achieve the latter goal.

End Historic Gender Discrimination

Currently, women pay sixty-eight percent more in
out-of-pocket health care expenditures than men.
Reproductive-related costs constitute the majority of that
difference.[194] Nationwide, women like Jennifer Erickson do
not have their basic health needs met by private insurance for
which they or their spouses work or pay high premiums. As a result,
the average woman will spend between seven and ten thousand dollars
for birth control throughout her reproductive life.[195] Historically, insurers and employers have
categorically excluded most contraception from their prescription
drug plans. In contrast, the one method of
“prescription” contraception that can be used by males
– vasectomy – is and has been covered by the vast
majority of insurance plans.[196] Although I have noted that traditional
indemnity plans cover surgical services more often than preventive
services, most insurers now provide coverage for a number of
preventive services and drugs, including routine physician
exams/well-visits, immunizations, blood-pressure lowering drugs,
etc.[197] Yet, even as insurance plans and employers
move toward covering these types of essential preventive services,
a large number do not include contraception, which is also
preventive, in that coverage.

In a less enlightened time, not very long ago, our
Supreme Court upheld an otherwise comprehensive disability policy
that excluded pregnancy-related disabilities from coverage. The
Court did not believe that pregnancy discrimination in the
workplace equaled Title VII gender discrimination.[198] Thankfully, Congress was convinced that the
dissenting opinion had correctly interpreted Title VII and thus
enacted the PDA to overrule the majority’s
interpretation.[199] In enacting the PDA Congress acknowledged
that sex-based differences between men and women (of which the
capacity to become pregnant is the primary one) are real, and
require employers to provide women-only benefits. By excluding
contraception from otherwise-comprehensive health plans, employers
and insurance companies have been engaged in pervasive sex
discrimination in their failure to provide these women-only
benefits. Although only employers, and not insurers, can be sued
under Title VII, the majority of employers have a self-insurance
mechanism, which means there are a thousands of potential
employer-defendants if women, civil rights organizations and
reproductive rights organizations mobilize to bring Title VII
suits.[200] Now that the EEOC, Congress, the federal
judiciary and state legislatures have admitted that contraception
exclusion is a legal and moral wrong, hopefully most employers and
insurance plans will voluntarily alter their coverage to include
contraceptive services, thereby saving scarce judicial resources
and getting this crucial coverage to women. Unfortunately, we
cannot rely on these entities to do so voluntarily, thus we need a
legislative mandate to insure that all women have sufficient access
as soon as possible.

VI. Counterarguments

“Any mandate, no matter how well-intentioned,
raises the costs for everyone and increases the number of people
without insurance.”[201] The recession has caused large and small
businesses to trim or eliminate health benefits.[202] The cost of private health insurance is
rapidly rising. Premiums rose eight percent in 2000, eleven percent
in 2001 and are expected to jump fifteen percent this
year.[203] All of these are examples of the form the
“cost argument” takes when opponents of contraceptive
coverage voice their reasons for opposing state and federal
insurance mandates.

The U.S. Chamber of Commerce, which opposes all
legislatively imposed insurance mandates because it claims they
directly raise the cost of health plans, sent a representative to
testify against the EPICC legislation. Kate Sullivan, the
Chamber’s Director of Health Care Policy, argued that
Congress’s attempt to supplement the coverage of those
already covered by health insurance was well-intentioned but
misguided. Instead of mandating contraceptive coverage, Ms.
Sullivan testified that Congress should be “tackling
the...issue of one out of six people in this country [being]
uninsured.”[204] The Chamber believes that by mandating
insurers and employers to include certain benefits in plans,
employers, and small businesses in particular, will pass on
increased costs to employees in the form of higher premiums or
elect not to provide insurance coverage at all.[205]

Ms. Sullivan is partially right; Congress should be
addressing the fact that millions of people in the United States
have no health insurance at all. But the number of uninsured is
such a vast problem that instituting universal coverage would
require revolutionary changes to our nation’s health care
system. President Clinton’s 1993 health care initiative
failed miserably in its attempt to provide universal health
insurance to all Americans. Including contraceptive coverage in
already comprehensive prescription plans is a much less expensive
proposition that does not require a total revamping of the health
insurance scheme. It simply requires that insurers remove the
exclusion that currently exists for contraception in most plans. It
simply requires an additional per employee expense of $1.43 per
month.[206] Ninety-seven percent of all traditional
insurance plans already cover prescription drugs
generally,[207] adding six more types of FDA-approved drugs
and devices to a preexisting plan is unlikely to cause scores of
employers to eliminate health insurance benefits altogether. And,
if insurance costs rise slightly for employees as a result of
offering contraceptive (and it is not proven they will), the
additional price is what we must bear if women are to be treated
equally in the disposition of employment benefits.

The Federal Employees Health Benefits Program
(FEHBP) added contraceptive coverage in 1998 for nine million
employees and their dependents. FEHBP’s vast health insurance
program is a good example of the financial implications of adding
contraception to an already-comprehensive insurance plan. In 2001,
the federal Office of Personnel Management reported that the
coverage law, effective in 1999, caused no increase in the
federal government’s premium costs.[208] As the largest employer in the United States,
the federal government’s success in offering comprehensive
contraceptive coverage without a corresponding rise in premiums is
an excellent model to which employers and insurers can look, if
they choose not to believe the numerous studies that have
established the cost-effectiveness of contraceptive use.

Finally, regardless of whether Congress decides to
pass EPICC, a federal agency and federal court have already
determined that contraceptive exclusion violates Title VII. Given
the weight of these precedents and the strength of the reasoning,
other federal courts are likely to rule the same way if presented
with similar Title VII suits. If excluding contraception from an
otherwise comprehensive benefit plan is illegally discriminatory,
the cost argument is largely moot. The increased cost an employer
may bear as a result of providing equal benefits is not a defense
to a Title VII discrimination claim.[209] Thus, even if Congress does not pass EPICC in
the near future, employers have a choice of voluntarily adding
contraceptive benefits at a cost of $1.43 per employee or waiting
to see if, armed with the EEOC and Erickson precedents, women bring
class action lawsuits against their employers in federal court
alleging Title VII violations. Considering the negative publicity
that would result from such suits, the costs incurred in defending
them and the long-term economic benefits employers are likely to
realize once complete contraceptive coverage is instituted,
employers should voluntarily add contraceptive coverage to their
health plans now.

A Legal Mandate Should Not be Necessary

Ideally, private employers and insurers would
recognize that to be fiscally, legally and socially responsible
they should add contraceptive coverage and voluntarily do so,
making a legal mandate unnecessary. Unfortunately, employers and
insurers have proven that they will not act to provide coverage
unless ordered to by Congress or the courts. The PDA was enacted
over twenty years ago, but Bartell Drugs waited until Jennifer
Erickson brought a Title VII claim before adding contraception
coverage to its benefits. Statistical information on the high costs
of unintended pregnancy (many of which are borne by both employers
and insurance companies) is readily available to anyone capable of
conducting an Internet or library search, yet employers and
insurers have ignored such research, which establishes the
long-term savings realized from contraceptive coverage. Instead,
employers and insurers have opted for the short-term savings
generated by not covering upfront contraceptive services.

Employers and insurers have been able to get away
with this unfair and discriminatory practice because it
overwhelmingly and directly affects only women. What else could
explain the rush to cover Viagra prescriptions soon after its FDA
approval? Where was the Chamber of Commerce when its members
decided to offer Viagra coverage? Did it advise employers and
insurers of the high cost that covering Viagra would entail? With
the help of former senator and presidential candidate Bob
Dole’s endorsement, Viagra was immediately accepted into our
culture as a drug to be celebrated. Employers and insurers
responded by offering coverage for it in their prescription drug
plans.

Despite the clear financial incentives for
employers and insurers to offer contraceptive coverage, a
legislative mandate is necessary because it is clear that we cannot
trust employers or insurers to voluntarily provide this
coverage.

Covering Contraceptives Would be Treating Women
“Special”

There is an argument that by forcing insurance
companies to cover contraceptive services, drugs and devices, women
and contraceptives would be getting special rather than
equal treatment under insurance policies. However, the state
legislation, EEOC decision, EPICC legislation and Erickson decision
do not require insurance companies to treat contraceptives as
“special,” only as equal to the level of
coverage already provided for all other FDA-approved prescription
drugs and related outpatient services. Furthermore, the mandate
would only apply to those insurance policies which already
offer comprehensive prescription drug plans. If a policy offers
prescription drug benefits, included in that benefit must be all
FDA-approved contraceptives. Under the proposed legislation, no
insurer would be forced to cover prescription contraceptives if it
was not already covering other prescription drugs. It simply could
not choose to exclude the FDA-approved contraceptives from its
otherwise comprehensive plan.

VII. Conclusions

It Makes Economic Sense

“If broader coverage leads to improved access
and substantially more effective contraceptive use...payers may
save resources by avoiding the costs of unintended
pregnancies.”[210]

It is generally accepted that contraceptive use
saves both private and public funds by reducing the incidence of
unintended pregnancy. The question that may remain for insurers and
employers though is whether coverage of contraceptives will
actually increase use , thereby generating immediate savings
from the reduced number of pregnancies. Preliminary studies
demonstrate that increased coverage leads to increased usage. Among
low-income women who use clinics for family planning services,
those who are not low-income enough to be eligible for Medicaid
(which covers all methods of contraception) are only
1/12th as likely to get Norplant than are other women at
the same clinics who are on Medicaid (and thus had
coverage).[212] Among 129 patients enrolled in a Texas study
in which they obtained a free IUD, forty-seven percent said they
could not have afforded and would not have been willing to pay for
the IUD if it had not been provided free of charge through the
study.[213]

Thus, all available signs point to the fact that
when contraception is covered by insurance, more women utilize it.
Although I have already extensively mentioned the public health and
social benefits realized from preventing unintended pregnancies, I
realize that such information is not as important to employers and
insurers as their bottom line. Insurers want to know whether
covering contraception will save the immediate costs they incur in
covering pregnancy-related expenses. Employers want to know whether
the additional one percent investment in monthly health care
premiums will be offset by the increased productivity of women who
are not forced to take time off or quit their jobs because of
pregnancy, miscarriage and abortion. Although admittedly more
research is needed in this area, increased coverage will probably
lead to increased use. All parties involved will thus economically
benefit from contraception coverage – employers, insurers,
women and the general public.

It’s Been Proven that Prevention Works

Where young people receive social support, full
information and positive messages about sexuality and sexual
relationships, and have easy access to sexual and
reproductive health services, they achieve healthier outcomes and
lower rates of pregnancy, birth, abortion and STDs (emphasis
added).[214]

From a policy standpoint, there is no logical
reason to continue to restrict access to contraceptive services,
drugs and information. From every perspective, it makes sense to
start increasing access to these services by making sure that those
women who have insurance have a complete set of basic health
benefits available to them. Covering contraception does not only
mean that insurance companies will cover the cost of the package of
pills a woman obtains at the pharmacy each month, it also means
that the woman who chooses prescription contraception will see a
physician every three or six months for a check-up and prescription
renewal. Thus, women will obtain reliable, regular information
about their reproductive health, be tested for cancers and sexually
transmitted infections and hear about new contraceptive
technologies from their physicians. Even though all women should
visit a gynecologist annually, women who use non-prescription
contraception do not have the same incentives to visit their
physicians as those with prescriptions and may go years at a time
without getting a check-up, often waiting until they realize they
are pregnant or believe they might have contracted an infection.
Covering prescription contraception will increase the number of
women using prescription contraceptive drugs and thus increase the
regularity of gynecological visits, which can positively impact
women’s overall health.

EPICC is the Best Form of Legislation

Despite the EEOC ruling, Erickson decision, and
state legislation, the passage of EPICC is necessary to ensure that
all women enrolled in health insurance plans have contraceptive
coverage. The EEOC is an administrative agency whose decisions are
binding only on the parties before them. Erickson’s Title VII
reasoning only applies to employers with fifteen or more employees.
Fewer than one-fifth of all U.S. employers are covered by Title
VII, leaving out fourteen million people working for small
businesses as well as another sixteen million who obtain health
insurance through the individual market.[215] The Erickson rationale and legal foothold
only applies to employers, not directly to insurers, so people who
are self-employed, part-time or temporary and purchase non-employer
related health insurance, need a federal mandate that is not
contingent on employment discrimination law. Even if every state
passed legislation mandating coverage within that state, state
insurance law fails to cover any self-insured health plans, because
they are preempted by the federal ERISA statute.[216] And, approximately seventy percent of the 160
million Americans covered by employer-sponsored health plans are in
self-insured plans that enjoy the benefits of ERISA.[217] Thus, only a Congressional mandate would
cover all of those women who are left out of the other legislative
and judicial remedies. Only the passage of EPICC would serve to
insure that all women who pay for insurance are afforded equal and
adequate coverage of their most pressing health care needs.

Aside from being the most comprehensive way of
accomplishing universal contraceptive coverage, the benefits of
EPICC can appeal to both political parties. EPICC is bipartisan
legislation introduced by Senators Harry Reid, a Democrat of Nevada
and Olympia Snowe, a Republican of Maine. Democrats are more
typically supportive of family planning and women’s rights
but insurance coverage for contraception is something Republicans
can use to appeal to their constituents as well. For the
conservative anti-choice wing of the Republican party, creating a
means for women to access affordable and effective birth control
will reduce the number of abortions performed in this country. By
increasing coverage, we will expand use, reduce the rate of
unintended pregnancy and thus reduce the demand for abortion.

Conservation of scarce judicial resources is
another benefit that will be realized if EPICC is passed. The
federal mandate would eliminate the lawsuits that women, with the
help of groups like Planned Parenthood, will continue to file
against their employers as long as contraceptive coverage is not a
reality for all women with insurance. The Erickson decision sent a
strong message to women’s groups that the federal judiciary
may no longer be willing to tolerate the employment discrimination
that occurs when employers fail to offer insurance plans with
contraceptive coverage. To avoid the onslaught of federal lawsuits
that will occur as a result of the favorable Erickson ruling,
Congress should pass EPICC, thus saving our judicial system the
time and money that will be spent litigating hundreds of Title VII
claims in federal courts.

Finally, there is a strong precedent for a federal
insurance mandate in the reproductive health arena. In 1997, after
findings that “drive-through deliveries” were related
to health problems in both newborns and new mothers, Congress
passed a law prohibiting the early discharge of women who have
given birth. As a result, group health plans may not
“restrict benefits for any hospital length of stay in
connection with childbirth...following a normal vaginal delivery,
to less than 48 hours, or restrict benefits for any hospital stay
in connection with childbirth...following a cesarean section, to
less than 96 hours.”[218] A conservative Congress passed this
legislation to protect the health rights of mothers. Today’s
Congress should pass EPICC to protect the health rights of all
women, who one day may want to become mothers, but only when the
time is right for them and their partners.

Numerous reproduction-related studies by healthcare
researchers and organizations have concluded that increasing access
to and affordability of contraception is a valuable goal. The
Institute of Medicine Committee that studied the effects of
unintended pregnancy made five recommendations for reducing the
number of unintended pregnancies, one of which was improving access
to contraception by reducing financial barriers.[219] There is a “need for contraceptive
services to be covered more adequately by health insurance, as is
increasingly the case for such other preventive interventions such
as immunizations.”[220] An economic study headed by James Trussell of
Princeton’s Woodrow Wilson school concluded that
“providing insurance coverage for contraception could be a
cost-effective strategy...current coverage policies constitute a
significant disincentive for effective contraceptive
use.”[221] The Institute of Medicine’s study on
contraceptive research and development recommended that
“third-party payers, who bear the costs and may reap the
benefits of the health status of their covered populations, include
contraception as a covered service.”[222] Deborah McFarlane and Kenneth Meier’s
analysis of U.S. family planning policy supports regulatory
initiatives for contraceptive access because “substantial
numbers of women who are not low-income have unintended
pregnancies...timely access to contraception can be problematic for
these women, even those who have private insurance.”[223]

Clearly, physicians, scientists, and economists
agree; insurance coverage for contraception has tangible,
long-term, medical, social and financial benefits that outweigh the
initial costs employers would bear in slightly increased insurance
premiums. If Congress wants to send a message to American women
that it cares about their health, their rights and their equality,
it must start by passing EPICC.

Looking toward the Future

Requiring health insurance coverage for
contraception is an essential step in addressing the numerous
problems caused by unintended pregnancy. But not until we begin to
eliminate the negative attitudes towards sexuality and
contraception can we dramatically reduce the incidence and effects
of unintended pregnancies. Along with extending health insurance
coverage, we must expand our sexual education programs in schools,
insure that low-income women without health insurance have access
to effective contraceptive and reproductive health services and
stop placing barriers in the way of a woman’s constitutional
right to choose abortion.

Since the “war on terrorism” began in
Afghanistan, the plight of the Afghan women has been extensively
publicized in the United States.[224] The burkas they were forced to wear, the fact
that women could not attend school, the number of young girls
selling their bodies to feed their families, all of these are
conditions with which Americans are horrified. Yet we continue to
discriminate against our own women; we continue to allow them to
place their bodies and their families at risk by not providing
universal contraceptive services and this leads to the
world’s most industrialized, prosperous and developed nation
having a shameful unintended pregnancy and abortion rate that
exceeds that of any other industrialized nation. To change these
conditions, we must offer affordable, effective contraceptive
services to every woman but we must also educate boys and girls
from a young age that sexuality is normal, and that contraception
is a basic health need that will be provided to whomever desires
it.

[1]ANDREA TONE, DEVICES AND
DESIRES: A HISTORY OF CONTRACEPTIVES IN AMERICA 291 (2001)
(quoting Dr. Mitchell Creinin, Director of Family Planning at the
University of Pittsburgh).

[15] In addition, the EEOC has subsequently brought
at least one Title VII suit against a major corporation – the
United Parcel Service (UPS) - alleging that the exclusion of all
oral contraceptives, even when prescribed to treat hormonal
disorders, from UPS’s health plan but inclusion of treatments
for male hormonal disorders was both a case of impermissible
disparate treatment and disparate impact. The claim survived
UPS’s motion to dismiss. See EEOC v. United Parcel
Service, Inc., 141 F. Supp. 2d 1216 (D. Minn. 2001).

[28]See Sylvia Law, Sex Discrimination and
Insurance for Contraception , 73 WASH. L.
REV. 363 at n.132 (1998), for multiple examples of this
problem, e.g. Janet Benshoof, President of the Center for
Reproductive Law and Policy asked her employer to give her
information about coverage for contraception and other reproductive
health services. “Even as an employer, she discovered
information was still hard to obtain. Eventually, Benshoof learned
that her organization’s health insurer excluded coverage for
all contraception except three generic formulas for birth control
pills only available by mail order.”

[33]SeeSARAH S. BROWN
& LEON EISENBERG, EDS. , THE BEST
INTENTIONS: UNINTENDED PREGNANCY AND THE WELL-BEING OF CHILDREN AND
FAMILIES 140 (“In contrast to private insurance
coverage and HMOs, the Medicaid programs of all fifty states and
the District of Columbia provide reimbursement for contraceptive
services, as required by law”) (1995).

[45]See Susan A. Cohen, Federal Law Urged
as Culmination of Contraceptive Coverage Campaign ,
THE GUTTMACHER REPORT ON PUBLIC POLICY
, Oct. 2001, at 5 (noting that “fewer than one-fifth of all
U.S. employers are affected by Title VII, leaving out some 14
million people working for small businesses as well as another 16
million who obtain health insurance through the individual
market”).

[47] Insurance law has historically been the province
of the states and states thus have statutory and administrative
regulation of health insurance. States may regulate the substance
of the insurance contract by requiring that certain benefits, such
as contraception, be covered. SeeRAND
E. ROSENBLATT, SYLVIA A. LAW, & SARA ROSENBAUM ,
LAW AND THE AMERICAN HEALTH CARE SYSTEM
143-144 (1997). Although in recent years, courts have interpreted
the federal ERISA (Employee Retirement Income Security Act) statute
of 1974 as preempting much state insurance law. See id. at
160-61.

[82]See Harrison supra note 13 at 21
(“Despite major improvements that have made intrauterine
devices appropriate for a large number of women, the method has not
yet overcome its difficult history and regained its former
acceptability, at least in the United States”).

[89]See Harrison, supra note 13 at 21
(“sterilization is the most used contraceptive in...the
United States. While the method is most satisfactory for
individuals who consider their families complete, many women are
resorting to sterilization at unexpectedly early ages.”).

[90]SeeHearings on S. 104, supra note
3 (testimony of Anita Nelson, MD) (“Over the last 16 years,
I’ve helped thousands of women choose the birth control
method that is right for them, and I can tell you that men and
women really do need an extensive menu of options for contraception
to meet their particular needs”).

[96]Seeid. at 141. See alsoCLARK C. HAVIGHURST, JAMES F. BLUMSTEIN &
TROYEN A. BRENNAN, HEALTH CARE LAW & POLICY , 115 (2d.
ed. 1998) (“states are not generally free to extend federally
supported Medicaid eligibility to single individuals, childless
couples, families with two resident parents, or others who were not
within the reach of traditional welfare programs”).

[97] This paper will not address in detail the scope
of the problem of women, especially adolescents and those of
college-age, who do not qualify for Medicaid, do not have
employer-based health insurance, but do not earn enough money to
purchase private health insurance. This segment of the female
population faces a nearly impossible task of obtaining quality,
affordable contraceptive services. See e.g.Can More
Progress Be Made? Teenage Sexual and Reproductive Behavior in
Developed Countries , The Alan Guttmacher Institute, Executive
Summary, 2001 at 5:

In the United States...substantial portions of
adolescents lack health insurance and therefore have poor access to
health care...countries other than the United States [France,
Sweden, Great Britain, and Canada] have national systems for the
financing and delivery of health care for everyone. Although the
systems vary, they provide assurance that teenagers can access a
clinician.

[109]SeeAchievements, supra note 73
at Table 2 (IUDs are used by less than 1% of couples yet are 99.2%
effective in preventing pregnancy; Norplant is used by 1.3% of
couples yet is 99.95% effective in preventing pregnancy;
Depo-Provera is used by only 2.7% of couples, yet is 99.7%
effective in preventing pregnancy. Contrasted with oral
contraceptives, which are used by 24.9% of couples yet because of
human error the typical success rate is 95%).

[113]See Harrison, supra note 13 at
15 (“The benefits and savings from preventing unintended
pregnancies are reaped by whoever is already footing the bill for
not preventing them...however for profit-oriented health
service...returns to investment in prevention may end up benefiting
the next plan or plans in which a given individual
enrolls.”)

[114]See Jacqueline E. Darroch, Cost to
Employer Health Plans of Covering Contraceptives , The Alan
Guttmacher Institute, 1998 (“A 1993 survey of private
insurance plans found that 97-98% of indemnity plans covering 100
or more employees and of HMOs routinely cover childbirth; 66% and
70%, respectively, routinely cover abortion, and 9 in 10 will pay
for it under some circumstances.”).

[117]See Law, supra note 28
(“For every low-weight birth that is averted, the health care
system saves between $14,000 and $30,000 in hospitalization
costs...reducing unintended pregnancy is the single most effective
means of reducing the number of distressed, low birth weight
babies”).

[124]See Pregnancy Discrimination Act, 42
U.S.C. §2000e(k). (clarifying Title VII to indicate that
discrimination because of “pregnancy, childbirth or related
medical conditions” is discrimination on the basis of sex).
See also Erickson, 141 F. Supp. 2d 1266, stating that the
PDA was enacted in response to General Electric Co. v Gilbert,
which held that an otherwise comprehensive short-term disability
policy that excluded pregnancy from coverage did not discriminate
of the basis of sex. The PDA was meant to correct what Congress
thought to be an erroneous interpretation of congressional intent
in enacting Title VII and thus statutorily recognized through the
PDA that there are sex-based differences between men and women
employees that require employers to provide women-only benefits or
otherwise incur additional expenses on behalf of women in order to
treat the sexes the same.

[125]See Trussell, supra note 120 at 6
(“Contraception clearly saves money...savings generally are
realized by third-party payers. They currently pay most of the
bills for ectopic pregnancies, spontaneous abortions, births and
newborn hospitalizations. Most private plans also cover induced
abortions.”).

[146]SeeDONALD
CRITCHLOW, INTENDED CONSEQUENCES: BIRTH CONTROL, ABORTION AND THE
FEDERAL GOVERNMENT IN MODERN AMERICA 17 (1999). See
alsoEthical and Religious Directives for Catholic Health
Care Services , National Conference of Catholic Bishops at 5
(“employees of a Catholic health care institution must
respect and uphold the religious mission of the
institution”), 10 (“The Church cannot approve
contraceptive interventions that either in anticipation of the
marital act, or in its accomplishment or in the development of its
natural consequences, have the purpose, whether as an end or a
means, to render procreation impossible”) and 11
(“Catholic health institutions may not promote or condone
contraceptive practices”).

[151]Seeid. at 226. See also
June Preston, Ted Turner Urges Limit of One Baby Per Family
, BUFFALO NEWS , Sept. 12, 1998 at A4.
Interestingly, this concern about population seems to have been
revived somewhat in the 1990s. In 1998, media mogul Ted Turner
called for a worldwide policy of one-baby-per-family, claiming that
the only way to improve the quality of life is to reduce the
planet’s population to 2 billion over the next 100 years.
Turner has pledged $1 billion to the United Nations for
international programs including population control.

[154]See Critchlow, supra note 146 at
236 (“By 1990 most Americans used artificial contraception.
There was little difference among Protestants, Catholics and Jews
in overall contraceptive practice, with about three of five women
in each religious group using artificial contraception”) and
Darroch, supra note 114.

[155]See McFarlane, supra note 142 at
46 (“The election of Ronald Reagan in 1980 brought
significant changes to the national family planning effort. Public
funding was imperiled [because]...Reagan owed a political debt to
the conservative coalition which opposed public support of family
planning.”) and 150 (“Throughout the 1980s and early
1990s, anti-abortion activists argued that Title X and Planned
Parenthood of America fostered abortion and teenage promiscuity.
Although many members of Congress were skeptical, they also feared
the power of the anti-abortion movement and the Christian
Coalition”).

[162]See McFarlane, supra note 142 at
160 (“public policies that promote abstinence are largely
ineffective [because] the demand for sex is relatively
inelastic”). See alsoHearings on S. 104 ,
supra note 3 (testimony of Anita Nelson, MD) (“Without
contraception, the average woman could become pregnant more than
twelve times, a prospect that is unacceptable to most women and
would place a woman’s and her children’s health at
unnecessary risk. Women cannot simply opt out of the need to
control their fertility for three or more decades”).

[169] Note that the term “unintended
pregnancy” encompasses conceptions that are unwanted and
those that are mistimed. In some contexts there are reasons to draw
a distinction between unwanted and mistimed pregnancies but this
paper will discuss unintended pregnancies generally, because both
types are a result of either a lack of contraception or misuse or
failure of the contraceptive method being employed.

[172]Seeid. at 251. See also
Rosenblatt, supra note 47 at 1257 (“a low birth weight
baby is forty times more likely to die during the neonatal period
and twenty times more likely to die during the first year as normal
weight infant”).

[182]See id. at 164 - 165 (“When
abortion was illegal in the United States, many women took the risk
of having an unsafe procedure, often performed by poorly trained,
if not incompetent, operators. Abortions often failed and mortality
was high...restrictions on access to abortion consistently generate
efforts to circumvent the restrictions”).

[187]See e.g. Keith Cunningham, Father
Time: Flexible Work Arrangements and the Law Firm's Failure of the
Family , 53 STAN. L. R. 967 , 977,
996 (2001). (“ ‘For female attorneys, the struggle is
between being a good mother and a dedicated attorney. People are
afraid that they'll be stigmatized because they'll be perceived as
not being a player,’ says June Eichbaum, a New York legal
recruiter. Eichbaum practiced law full-time for eleven years in
Manhattan; when she switched to a flex-time schedule as a corporate
associate, Eichbaum says she was taken off the "A Team" and given
paralegal work.”)

[189]See Harrison, supra note 13 at 1
(“the field of contraceptive research and development has
somehow lost the energy that characterized it at the time of what
is called the ‘first contraceptive
revolution’.”).

[191]See id. at 15. The costs of researching
and developing a new drug are extremely high. The process from
inception to FDA approval takes an average of twelve to fifteen
years and costs about $500 million. See e.g. www.phrma.org , (visited March 10,
2002).

[192]See Harrison, supra note 13 at
15 (“no firm will undertake commercialization of a new
medical technology without at least a strong belief in the
existence of a substantial market of consumers able and willing to
pay for it”).

[193]See id. at 2 (“the committee
should refocus itself toward approaches in areas where the needs of
women are still unmet by existing methods”).

[216]See Havighurst, supra note 96 at
67 (“ERISA’s preemptive provisions...permit
self-insured plans alone to escape both the burdens of state
insurance regulation and the impact of other state laws applicable
to health insurers”).